VIDEO SURVEILLANCE What you need to know as a federal injured worker!
First as always let’s get that coffee going….
Ok…let’s get started. There was a Major ECAB decision on OIG surveillance video in 2012 that many people do not know about. It was a landmark decision that has been upheld many times in appellate levels of ECAB and court decision for OWCP workers. Most workers and doctors do not understand the rules, provisions and rights and responsibilities that come with private eye investigations of workers that are off of work or on temporary total disability. This system is abused and misused constantly, and most people do not know how to react or handle video surveillance and either do their doctors. This is a very important podcast because you really need to know your rights and not be bullied by private eye or OIG investigations. Understand that the attitude of OWCP, the employing agency and the OIG is that no one is really injured and that all injuries are minimal and people off work…want to be off work or are not really as hurt as they say they are. These types of investigations have bullied so many people to have their case closed inappropriately specifically because the average injured worker and/or their doctor do not know the federal rules, rights and responsibilities that are associated with video surveillance. I want to dive into the landmark 2012 court decision on video surveillance and how it affects you and then go into detail about what you and your doctor should do if this ever happens to you.
Injured federal workers who draw wage loss compensation should assume that investigators associated with the USPS Office of Inspector General (OIG) have covertly filmed them or will film them. This is a very common technique and tool of investigating an OWCP federal injury claim. The Employees’ Compensation Appeals Board also known as ECAB, issued a decision on Sept. 26 (Docket 11-863) that addresses a number of issues involving Employee agencyOIG surveillance videotape. All federal injured workers, OWCP approved doctors and/or advocates should be familiar with this important decision. It is important because it addresses a critical distinction between use of surveillance videotape for the purposes of 1) fraud investigation and 2) for claims development.
Background of this land mark case—A mail handler had an accepted on-the-job injury. She was off work following two surgeries. The Employee agencyOIG conducted surveillance and videotaped her. The OIG had direct, in-person contact with the mail handler’s attending physician and showed him edited surveillance video. The mail handler was not aware in advance that her employer intended to present surveillance video to her doctor, and she did not have an opportunity to obtain a copy of the video and offer any explanations or comment. The attending physician was presented with this edited video and then signed under oath a Employee agencyquestionnaire, signed an official statement drafted by the OIG federal agent, and completed a CA-17 noting that the mail handler could return to work full time with no restrictions …after the physician was shown this edited surveillance video. OWCP then terminated the claim based on the attending physician’s opinion. Now there are many things that occurred here to take note of. But, first the employing agency and the federal officer did not follow procedure rules and violated the rights of the federal employee. So understand that the employing agency and federal investigators went outside the rule of federal law to knowingly violate federally protected rights, rules and provisions. More to the point is that 11 years later they still violate these rules constantly to this day.
ECAB reviewed this injured workers termination case dispute and reversed the termination on several grounds—two are detailed below: First, the Employee agencyviolated the regulations prohibiting direct contact with the treating physician, 20 CFR 10.506. The Board wrote: It is clear that the agents of the employing establishment took an active, and in some issues decisive, role in developing appellant’s claim and building the case for termination of her benefits. The Board finds that OWCP departed from the implementing regulations by relying on evidence obtained through direct contact between agents of the employer and appellant’s (injured worker) treating physician… OWCP should have rejected evidence generated by a violation of the applicable regulations. Second, the injured worker was not afforded the required notice regarding the existence of the surveillance video and its intended use for the purpose of obtaining an adverse medical opinion. The ECAB Board stated: The Board [has] imposed upon OWCP an obligation to disclose the existence of videotape evidence to the employee before it is shown to a doctor and to allow the employee to comment on and explain the events captured on tape. The Board also quoted the relevant prior holding from an earlier case, 58 ECAB 478: Under certain circumstances, videotape evidence may be of value to a physician offering an opinion regarding a claimant’s medical condition. It may reflect on the patient’s reliability as a historian or the actual ranges of motion, lifting or other physical activities the claimant may perform. However, a videotape may be incorrect or misleading to a physician if there are errors, such as identity of the individual recorded on the videotape or whether certain activities were facilitated by the use of medication. The OWCP and OIG Office has the responsibility to make the claimant aware that it is providing videotape evidence to a medical expert. If the claimant requests a copy of the videotape, one should be made available and the employee given a reasonable opportunity to offer any comment or explanation regarding the accuracy of the recording. OWCP has incorporated the holdings in 58 ECAB 478 into the FECA Procedure Manual, under provisions regarding Second Opinion Examinations and Independent Medical Examinations. See FECA PM 2- 0810.9(g), 2-0810.11(c) and 2-0810.12a. ECAB cautioned that its opinion should not be read as criticism of OIG fraud investigation efforts and that it did not have jurisdiction over USPS OIG investigative practices. The Board explained: This opinion should not be read as a criticism of efforts to investigate possible instances of fraud... The Board recognizes that OWCP and employing establishments have an affirmative duty to maintain the integrity of the system under which FECA benefits are provided. ECAB also recognizes the need to maintain an appropriate separation between the non-adversarial system of managing FECA claims and the investigative process of determining whether an employee is receiving unwarranted benefits and services. The investigative practices of the Employee agencyOffice of Inspector General are not within the jurisdiction of ECAB... In this appeal, the non-adversarial claims administration process was impermissibly mingled with the investigative process. These last statements by ECAB officials reveal part of the ongoing problems with these type of investigations. OIG investigations are not operating under OWCP federal rules and they do not have to respect the authority of the OWCP rules process in investigating claims. Hence, we have a non-adversarial system setup with rules and rights being investigated by an outside party that does not have to respect or operate under that authority. So, the bullying continues. Now, I honestly think that some of these investigations are warranted because I have seen first hand that some people do try to abuse the system. In our facilities we try to weed those people out because they are causing harm to the reputation of the system that legitimately injured workers are subjected to. This is not an easy system to operate under but both sides have legitimate concerns on these issues and the system has not addressed these thoroughly with all parties involved in these types of video surveillance investigations. So … I recommend that if you are one of the people who is bein unfairly targeted and your temporary disability is valid…let’s understand your rights and what you should do if this happens to you or your doctor.
First, let’s go over what you should know as an injured worker if you are subject to video surveillance.
In Federal Workers’ Compensation, if the Employing agency has concerns about the Employee's Activities of Daily Living while they are off work, then the Employer must submit their concerns to the Office of Workers compensation, (OWCP) who can then contact the treating physician and request relevant information to the agencies concerns.
An Employer’s supervision is limited to relevant concerns only over an Employee’s work activities, and whereas, an Employer is not privy to the employee’s Protected Health Information, therefore, your OWCP approved doctors’s work restrictions on CA-17 or CA-5C’s are directed to the Employer and work and not to the Employee's Activities of Daily Living. To assist in their healing, the Employee is encouraged to be active to the point of discomfort while heeding the symptoms from their injured body.
The federal injured worker’s Employer should be familiar with the United States Department of Labor, Employees’ Compensation Appeals Board (ECAB), DECISION and ORDER, Docket No. 11-863, Issued September 26, 2012. I will summarize the parts that are relevant that you should pay close attention to, in order to protect your rights.
1. Video surveillance must first be seen by Employee and their attorney. No exception.
2. The Injured worker’s statement must accompany the video when presented to the doctor.
3. If the Department of Justice, Office of Inspector General (OIG), presents a video to a physician, they have become an agent for the Employer.
4. Federal Employers cannot directly contact the treating physician. So the OIG by extension are not able to contact the injured worker’s doctor because they are an agent of the employing agency.
5. Videos are not good medical evidence of the ability to work because the person may be on medications and the video may not show the employee’s actual work or actual restrictions that can not be accommodated by the employer.
Now…TIPS for your doctor… for a Physician Review of Video Surveillance
A HIPAA compliant subpoena or a patient’s written authorization is required for a physician to review video surveillance.
Requirements to Present a Video for Physician Review:
! A HIPAA compliant subpoena or patient’s written authorization is required to present a video to your OWCP approved doctor to even acknowledge that your doctor even has you as a patient. Be Careful! An official looking letter
with a government agency’s letterhead does not make it HIPAA compliant.
1. Photo ID copy attached to your written request.
2. Make an appointment with your approved OWCP doctor’s HIPAA Privacy Officer before responding to make sure the request is properly formatted to HIPAA federally protected health information law.
3. Payment in Advance or OWCP pre-approval is required before your physician’s time and services are provided on this surveillance matter. Typically " $500 per hour to view a video.
4. If a Medical Opinion report is requested, the fee must be negotiated and agreed in advance.